with whom Mr. Justice Hernández Matos concurs, partly dissenting.
San Juan, Puerto Rico, June 28,1968
I dissent from that part of the judgment which sustains the appropriateness of the sentence as being subsequent.
Section 152 of the Penal Code as originally adopted, provided that every person who escaped from prison while serving sentence would be punishable on summary order of *403the competent court by imprisonment for an additional minimum term of one-twentieth or maximum of one-fifth of the term of the original sentence. The previous provision was adopted contemporary to § 56 of the Penal Code concerning subsequent offenses and which provides that every person who having been convicted of any offense punishable by imprisonment in the penitentiary commits any crime, after such conviction, is punishable therefor in the manner stated in said section.
In 1950 — Act No. 9 of December 29 — and as a result of facts known by everybody, § 152 of the Penal Code was amended it being provided then that any person under lawful custody who escaped while under indictment, or during the pendency of an appeal, or while serving sentence, would be punishable on summary order of the District Court of Puerto Rico (Superior Court) by imprisonment for a term of from one to ten years in addition to the sentence imposed on him for the other offense or to the one he was serving, and such penalty would not be concurrent with any other.
By Act No. 447 of May 14, 1952, § 152 was amended again to provide that any person under lawful custody who shall escape while being held in restraint, or during the pen-dency of an appeal, or while serving sentence, shall be punishable on summary order of the District Court (Superior Court) in the following manner: (a) if while held in restraint, he shall be guilty of a misdemeanor, and be subject to imprisonment in jail; (b) if serving sentence for a felony, he shall be guilty of a felony; and (c) if serving sentence for a misdemeanor, he shall be guilty of a misdemeanor and be subject to imprisonment in jail. Concurrence is denied to the judgments rendered in conformance with the foregoing.
Historically, escape under lawful custody has been dealt with as a sui generis procedure. It has always been provided by the lawmaker that the person be punished summarily and by order. The Superior Court, before the District Court, *404has been given original jurisdiction to entertain those cases even though a misdemeanor is involved. Because of the historical origin and the provision of § 152 as amended, in the absence of an affirmative legislative statement to the contrary, I believe that the penalties imposed in these proceedings for escape do not give rise to the allegation of subsequent offense pursuant to § 56 of the Penal Code.
I agree with appellant’s counsel in that the lawmaker gave to the escape special aggravating consequences in prohibiting the concurrence of penalties, and I would recommend that appellant be sentenced again for the offense of escape according to the penalties set forth in § 152 of the Penal Code without considering the provision of § 56 of said Code.